dated this the 16 th day of april 2015 - karjudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... ·...
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF APRIL 2015
BEFORE
THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITIONS NO.38077 OF 2014 & 38460 OF 2014 C/W 47128 OF 2014 (GM-CPC)
WRIT PETITIONS No.38077 OF 2014 & 38460 OF 2014 BETWEEN: SRI. C. KISHANLAL KOTHARI S/O LATE CHANDAMAL AGED ABOUT 67 YEARS, R/AT NO.97, BAZAAR STREET, ULSOOR, BANGALORE-560 008 PROCLAIMED SECRETARY OF BANGALORE GORAKSHANASHALA SOCIETY, HAVING ITS OFFICE AT NEKKUNDI, DOORAVANINAGAR POST, BANGALORE TALUK, BANGALORE-560 037 ... PETITIONER
(BY SRI. TARAKRAM, SR. COUNSEL FOR SRI H R ANANTHAKRISHNA MURTHY – ADV.) AND 1. VINOD SOHANRAJ SANKLA
S/O LATE SOHANRAJ SANKLA AGED ABOUT 46 YEARS, A-504, SUJAY GARDEN MUKUNDNAGAR PUNE-37
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2. PRAVEEN SOHANRAJ SANKLA ALIAS PRAVEEN KHUBILAL KAVEDIA AGED ABOUT 48 YEARS, R/O "PANKAWAR" PLOT NO.10 AKASH DARSHAN SOCIETY SALISBURY PARK GULTEKADI PUNE-411037
3. SHANTILAL JAIN S/O LATE LALCHAND SANKHLA AGED ABOUT 76 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21
4. RAJKUMAR JAIN S/O SHANTILAL JAIN AGED ABOUT 51 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21
5. PAVAN KUMAR S/O SHANTILAL JAIN AGED ABOUT 44 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21
6. DHARMENDRA KUMAR JAIN S/O SHANTILAL JAIN AGED ABOUT 38 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21
7. RAJIV SANKHLA S/O LATE HANSRAJ SHANKHLAL AGED ABOUT 44 YEARS, R/AT A.T.ROAD, KAMRUP DISTRICT, GAUHATI-1, ASSAM
8. AJAY SANKHLA S/O LATE DAULATRAJ SANKHLA AGED ABOUT 38 YEARS, R/AT A.T.ROAD, KAMRUP DISTRICT,
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GAUHATI-1, ASSAM 9. SUMATICHAND SANKHLA
S/O LATE LALCHAND SANKHLA AGED ABOUT 57 YEARS, R/AT 3A, JANKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT, INDORE-452001
10. VIKAS SANKHLA
S/O SUMATICHAND SANKHLA AGED ABOUT 29 YEARS, R/AT 3A, JANKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT, INDORE-452001
11. ASHOK KUMAR RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 72 YEARS, R/O BHAGIRATHA COMPLEX, SHAHAGANJ, AURANGABAD.
12. VIRCHAND RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 70 YEARS, R/O ANAND APARTMENT, JAFARGET, AURANGABAD.
13. V.SANJAY VIRCHAND SANKHLA S/O R.VIRCHAND SANKHLA AGED ABOUT 43 YEARS, R/O ANAND APARTMENT JAFERPET AURANGABAD (MH)
14. R.UTTAMCHAND RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 56 YEARS, R/O NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD
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15. R.SANTOSH RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 46 YEARS, R/O GOPINATH PURAM ROW HOUSES, NO.6, AAYAPPA MANDIR SAINATH NAGAR, SATARA PARISAN AURANGABAD
16. A MAHAVEER ASHOK KUMAR SANKHLA S/O R ASHOK KUMAR SANKHLA AGED ABOUT 38 YEARS, R/O BHAGEERATHA COMPLEX, SHAHGANJ, AURANGABAD
17. U.MUKESH UTTAMCHAND SANKHLA S/O R UTTAMCHAND SANKHLA AGED ABOUT 34 YEARS, RESIDING AT NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD
18. NITIAN UTTAMCHAND SANKHLA
S/O UTTAMCHAND SANKHLA AGED ABOUT 32 YEARS, RESIDING AT NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD
19. MR.SAJJANRAJ SANKHLA S/O S.GIRIDHARILAL AGED ABOUT 76 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
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20. MR.TEJBAHADUR S/O LATE G.ANRAJ AGED ABOUT 71 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY, SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
21. GAUTAMCHAND SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 56 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA, R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
22. NITESH SANKHLA S/O SURESH SANKHLA AGED ABOUT 26 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
23. MR. SURESH SHANKHLA
S/O M.DHARMARAJ SANKHLA AGED ABOUT 53 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
24. MR.VISHAL SANKHLA S/O GOUTAMACHAND SANKHLA AGED ABOUT 33 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ
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SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
25. MR.VEDANTH SANKHLA S/O GOUTAMACHAND SANKHLA AGED ABOUT 31 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
26. MR.HARISH SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 48 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
27. MR.KARAN SANKHLA S/O HARISH SANKHLA AGED ABOUT 15 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
28. MR.MOHIT SANKHLA S/O LATE SAJJANRAJ SANKHLA AGED ABOUT 28 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
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29. MR.SUNIL SANKHLA S/O TEJBAHADDUR SANKHLA AGED ABOUT 46 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
30. MR.RAJIV SANKHLA S/O SUNIL SANKHLA AGED ABOUT 22 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
31. MR.DILIP SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 45 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
32. MR.ADIYA SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 42 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
33. MR.SATHISHRAJ SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 42 YEARS, REPRESENTED BY THEIR
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AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.
34. M/S BAGMANE CONSTRUCTION PVT.LTD 8TH FLOOR, 1 BLOCK, BAGMANE LAKE VIEW, BAGMANE TECH PARK, CV RAMAN NAGAR, BANGALORE.
35. SATYANARAYANA AGED ABOUT 51 YEARS, S/O THIMMAIAH, R/AT 8TH FLOOR, BAGMANE LAKE VIEW, BAGMANE TECHPARK, CV RAMAN NAGAR, BANGALORE. RESPONDENTS
(By Sri./Smt : LOKESH KUMAR K S )
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER ON I.A. NO.13 AND 26 DATED 6.2.2014 IN O.S. NO. 8230/2007
PASSED BY THE LEARNED CITY CIVIL JUDGE AT BANGALORE VIDE
ANN-Z
W P NO.47128/2014 BETWEEN 1. ASHOK KUMAR RATANLAL SAKHALA
AGED ABOUT 72 YEARS OCC:BUSINESS R/O BHAGIRATH COMPLEX SHAHAGANJ, AURANGABAD
2. VEERCHAND RATANLAL SAKHALA AGED ABOUT 69 YEARS OCC:BUSINESS
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R/O FLAT NO.1, ANAND APARTMENT JAFARGATE AURANGABAD
3. SANJAY VEERCHAND SAKHALA AGED ABOUT 42 YEARS OCC:BUSINESS R/O FLAT NO. 1, ANAND APARTENT JAFARGATE AURANGABAD
4. SANTHOSH RATHANLAL SAKHALA AGED ABOUT 48 YEARS OCC:BUSINESS R/O HOUSE NO.6 GOPINATHAPURAM BEED-BYE PASS ROAD AYYAPPA MANDIR AURANGABAD
5. MAHAVIR ASHOK SAKHALA AGED ABOUT 38 YEARS OCC:BUSINESS R/O FLAT NO. 1 BHAGIRATH COMPLEX, OPP PATEL PETROL PUMP SHAHGUNJ, AURANGABAD
6. MUKESH UTTAMCHAND SAKHALA AGED ABOUT 34 YEARS OCC:BUSINESS R/AT PLOT NO. 6/4 ASHTAVINAYAK HOUSING SOCIETY NAREGOAN ROAD, CHIKALTHANA MIDC, AURANABAD
7. NITIN UTTAMCHAND SAKHALA AGED ABOUT 32 YEARS OCC:BUSINESS R/O PLOT NO.6/4 ASHTAVINAYAKA HOUSING SOCIETY NAREGAON ROAD CHIKALTHANA
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MIDC, AURANGABAD ALL ARE REPRESENTED BY SPS HOLDERS
8. SRI B YARRAM REDDY S/O RAM REDDY AGED ABOUT 45 YEARS RESIDING OF PLOT NO. 177 DHANALAXMI MILAYAM PRAGATI ENCLAVE, MIYAPUR HYDERABAD
9. SRI SANTHOSH RATHANLAL SAKHALA AGED ABOUT 48 YEARS OCC:BUSINESS R/O HOUSE NO. 6, GOPINATHAPURAM, BEED-BYE PASS ROAD OPPOSITE AYYAPPA MANDIR AURANGABAD
10. SRI NARSIE REDDY S/O VENKATA REDDY AGED ABOUT 45 YEARS OCC:BUSINESS R/O PLOT NO. 313 PHASE 1/4, PARTUNER HYDERABAD ... PETITIONERS
(BY SRI.LOKESH KUMAR K S – ADV.) AND 1. SRI C KISHANLAL KOTHARI
S/O LATE CHANDAMAL AGED ABOUT 66 YEARS RESIDING AT NO. 97, BAZAAR STREET, ULSOOR BANGALORE-08 SECRETARY OF BANGALORE GORAKSHANASHALA SOCIETY (REGISTERED UNDER THE MYSORE SOCIETIES ACT
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HAVING ITS OFFICE AT NIKUNDI, DOODRVANINAGAR POST BANGALORE TALUK BANGALORE-17
2. M/S BAGMANE CONSTRUCTIONS PRIVATE LIMITED A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT 8TH FLOOR, A BLOCK, BAGMANE LAKE VIEW, BAGMANE TECHPARK, C V RAMAN NAGAR BANGALORE-560053 REPRESENTED BY ITS MANAGING DIRECTOR RAJA BAGMANE
3. S SAJJANRAJ SANKHLA S/O S GIRIDHARILAL AGED ABOUT 74 YEARS RESIDING AT NO. 35 7TH CROSS, VASANTHANAGAR BANGALORE-052
4. MR TEJBAHADUR S/O LATE G ANRAJ AGED ABOUT 69 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
5. GAUTHAMCHAND SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 54 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
6. NITESH SANKHLA S/O SURESH SANKHLA AGED ABOUT 24 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR
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BANGALORE-052
7. MR SURESH SANKHLA S/O LATE DHARAMRAJ SANKHLA AGED ABOUT 50 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
8. MR VISHAL SANKHLA S/O MR COUTAMCHAND SANKHLA AGED ABOUT 31 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
9. MR VEDANTH SANKHLA S/O MR GOUTHAMACHAND SANKHLA AGED ABOUT 28 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
10. MR HARISH SANKHLA S/O MR SAJJANRAJ SANKHLA AGED ABOUT 46 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
11. MR KARAN SANKHLA S/O MR HARISH SANKHLA AGED ABOUT 12 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
12. MR MOHIT SANKHLA S/O LATE SAJJANRAJ SANKHLA AGED ABOUT 25 YEARS
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RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
13. MR SUNIL SANKHLA JAIN S/O MR TEJBAHADDUR SANKHLA AGED ABOUT 43 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
14. MR RAJIV SANKHLA S/O SUNIL SANKHLA AGED ABOUT 18 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
15. MR DILIP SANKHLA S/O MR TEJBAHADUR SANKHLA AGED ABOUT 41 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
16. MR ADITYA SANKHLA S/O MR DILIP SANKHLA AGED ABOUT 18 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
17. MR SATISHRAJ SANKHLA S/O MR TEJBAHADUR SANKHLA AGED ABOUT 39 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052
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18. BANGALORE GORAKSHANASHALA SOCIETY (REGISTERED UNDER THE MYSORE SOCIETIES ACT HAVING ITS OFFICE AT) NIKKUNDI DOORAVANINAGAR POST BANGALORE TALUK BANGALORE-560017 REPRESENTED BY ITS SECRETARY SRI VIJAYRAJ LUNIA S/O LATE POOLCHAND LUNIA AGED ABOUT 49 YEARS RESIDING AT NO.19 D S LANE, CHIKKAPET CROSS BANGALORE-560053
19. SATHYANARAYANA S/O SRI THIMMAIAH AGED ABOUT 45 YEARS 8TH FLOOR, A BLOCK BAGMANE LAKE BAGMANE TECHPARK C V RAMAN NAGAR BANGALORE-560053
20. VINOD SOHANRAJ SANKLA S/O LATE SOHAN RAJ SAKLA AGED ABOUT 40 YEARS A-504, SUAY GARDEN MUKUNDNAGAR PUNE-37
21. PRAVEEN SOHANRAJ SANKLA ALIS PRAVEEN KHUBILAL KAVEDIA AGED ABOUT 42 YEARS R/O PANKAWAR, PLOT NO.10 AKASH DARSHAN SOCIETY SALISBURY PARK GULTEKADI PUNE-411037
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22. MR SHANTILAL JAIN S/O LATE LALCHAND SANKHLA AGED ABOUT 70 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21
23. MR RAJKUMAR JAIN S/O MR SHANTILAL JAIN AGED ABOUT 45 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21
24. MR PAVAN KUMAR S/O MR SHANTILAL JAIN AGED ABOUT 38 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21
25. DHARMENDRA KUMAR JAIN S/O MR SHANTILAL JAIN AGED ABOUT 32 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21
26. MR RAJIV SANKHLA S/O LATE HANSRAJ SANKHLA AGED ABOUT 38 YEARS RESIDNG AT A T ROAD KAMRUP DISTRICT GAUHATI-1 ASSAM
27. MR AJAY SANKHLA S/O LATE DAULATRAJ SANKHLA AGED ABOUT 32 YEARS RESIDNG AT A T ROAD KAMRUP DISTRICT GAUHATI-1 ASSAM
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28. MR SUMATICHAND SANKHLA S/O LATE LALCHAND SANKHLA AGED ABOUT 51 YEARS RESIDING AT 3A, JANAKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT INDORE-452001
29. MR VIKAS SANKHLA S/O MR SUMATICHAND SANKHLA AGED ABOUT 23 YEARS RESIDING AT 3A, JANAKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT INDORE-452001 ... RESPONDENTS
(By Sri./Smt : R3-29 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 / 19TH
DEFENDANT TO DEPOSIT THE AMOUNT OF RS.11 CRORES ALONG
WITH ACCRUED INTEREST ON THE SAID RS.11 CRORES FROM THE
DATE OF TWO MOU'S AUGUST 2006 TILL DATE WHICH IS EXECUTED
BY R-1 / 19TH DEFENDANT MR. KISHANLAL KOTHARI AS PER ANN-AF
i.e. AS PER ORDERS ON I.A. NO. 13 & 26 DATED 6.2.2014, IN O.S.
8230/2007.
THESE WRIT PETITIONS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDERS ON 8.04.2015, THE COURT MADE THE FOLLOWING:
O R D E R
The parties in these writ petitions would be referred to
as per their ranking in the court below for the sake of
convenience.
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2. Writ Petition Nos.38077/2014 & 38460/2014 are
filed by the defendant No.19 in O S No.8230/2007 on the file
of the VII Addl. City Civil Judge, (CCHNo.19), at Bangalore
being aggrieved of the order dated 6.02.2014 passed on I A
Nos.13 & 26. W P No.47128/2014 is filed by the plaintiffs
No.11 to 13 and 15 to18 in the above suit seeking deposit of
the amount with interest.
3. The trial court by the impugned order directed the
19th defendant to deposit Rs.11 crores to the credit of O S
No.8230/2007. So far as payment of interest is concerned, it
is observed by the court below that the plaintiffs No.11 to 13
and 15 to 18 are at liberty to agitate the same at the time of
hearing on main suit on proper enquiry.
4. The facts of the case to be stated in brief are as
follows:
The plaintiffs filed the suit for the relief of partition and
separate possession, mesne profits and permanent injunction
restraining the defendants from alienating or dealing with the
same and further restraining them from constructing and
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changing nature of the suit lands etc., on the ground that the
suit schedule properties are the Hindu undivided family
properties of the plaintiffs and defendants 1 to 15 and
defendants have no exclusive right over the suit schedule
properties.
5. The defendant No.19 filed written statement
contending inter alia that the suit schedule properties are the
properties belonging exclusively to that defendant. The
properties are acquired prior and after registration of the
society. The said defendant has been in possession and
enjoyment of those lands. The plaintiffs have no right
whatsoever and they are strangers in respect of the suit
lands.
6. I A No.13 was filed by plaintiffs No.11 to 18 on
28.3.2011 under Section 151 CPC praying to direct the 16th
defendant to deposit a sum of Rs.11 crores to the credit of O
S No.8230/2007 on the file of City Civil Judge, Bangalore
City, Bangalore. I.A. No.26 was filed by the plaintiffs No.11 to
13 and 15 to18 on 26.8.2013 under Section 151 CPC seeking
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to direct the 19th defendant to deposit the aforesaid amount
with interest to the credit of O S No.8230/2007. IA No.26
came to be filed after the order passed by this Court in W P
No.10097-10101/2012 (GM-CPC) dated 23.07.2013
remanding the matter in I A No.XIII with a direction to afford
an opportunity to file objections by defendants 17 and 19 and
dispose of the same in accordance with law. In the
meantime, defendant No.19 came to be impleaded by the
order of the trial court dated 29.1.2013 on I A No.18 filed
under Order 1 Rule 10 CPC by the plaintiffs 11 to 18. This
Court by the order dated 10.6.2013 in W P No.12120/2013
(GM-CPC) directed to implead the 19th defendant as Secretary
of Bangalore Gorakshana Society. Therefore, I A Nos.13 & 26
are filed by the plaintiffs as aforesaid for the relief of direction
to the defendant No.19 to deposit the amount with interest.
7. It is stated in the affidavits filed in support of the
applications that the defendant No.19 has no exclusive rights
or authority to enter into joint development agreement with
17th defendant in respect of the existing rights of plaintiffs.
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By collusion and connivance with 17th defendant, the
defendant has resorted to only fraudulent, deceitful acts and
cheated the plaintiffs. The 19th defendant in collusion with
the first defendant created a joint developmental agreement
with the 17th defendant and entrusted the joint family lands,
which are the subject matter of the suit behind the back of
the plaintiffs. The 19th defendant is not having any
semblance of right in respect of lands in question but created
two Memorandum of Understanding in August, 2006 and
received an amount of Rs.7,50,00,000/- as interest free
security deposit, out of which Rs.2,50,00,000/- is not
refundable and Rs.3,50,00,000/- as interest free security
deposit out of which Rs.1,15,00,000/- is non refundable.
Thus the 19th defendant is enjoying the said huge sum of
Rs.11 crores without any claim whatsoever on the lands
belonging to the plaintiffs. In Para-28 of the written
statement filed by the first defendant, it was stated that he
had entered into the joint development agreement with
defendant Nos.17 & 18 in the capacity as “kartha” of the
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family keeping in mind necessity of the family and also the
benefit of the family and the said statement made by the 1st
defendant is false, baseless and untenable statement as the
first defendant had not entered into joint developmental
agreement nor for the benefit of the joint family members but
for the benefit of first defendant alone. It is contended that
the defendant is alone enjoying the said substantial amount
in crores dishonestly by withholding the said amounts falsely
representing that he is the karta of M/s.Giridharilal & Sons
and as a GPA holder of other family members. The 19th
defendant has no right or authority to receive the huge
amount on the suit schedule ancesatral joint family property
of items 1 to 3 that too on the basis of created, manipulated,
fabricated and fraudulent two M.O.Us. of August, 2006.
8. It is further contended that the registered sale deeds
stand in the name of M/s.Giridharilal & Sons for the years
1934 to 1937 which establish that the suit schedule
properties are the ancestral joint family properties and the
rights, title, interest and lawful possession of the members of
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the joint family cannot be disputed by anybody including the
19th defendant. The said landed properties do not belong to
M/s.Bangalore Gorakshana Shala and also contends that
Giridharilal & Sons were in fact maintaining a Goshala of
their own in part of their land much prior to the very
existence of 19th defendant and the recitals of some of the sale
deeds mention such existence of the Goshala in the joint
family property and the said lands were mutated in the
revenue records in favour of M/s.Giridharilal & Sons.
9. It is further contended that in the affidavit sworn to
by Sri Kishanlal Kothari in support of I A No.7, there is an
admission with regard to the registered sale deeds of 1934 to
1937 standing in the name of M/s.Giridharilal & Sons and
therefore Sri Kishanlal Kothari cannot be permitted to make a
false claim on the suit schedule properties as Secretary of
M/s.Bangalore Gorakshana Shala, which exclusively and
absolutely belong to joint family members of M/s.Giridharilal
& Sons. The alleged representation of Mr..Kishanlal Kothari
representing as Secretary of Gorakshana Shala came into
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existence only in the year 1940. The 19th defendant is
enjoying Rs.11 crores along with interest since August, 2006
without any right to retain that amount. Therefore, the
plaintiffs filed the aforesaid two interlocutory applications for
the reliefs as mentioned above.
10. The defendant No.19 filed objections denying the
averments made by the plaintiffs in the affidavits filed in
support of the applications. The first defendant has stated in
Para-28 of the written statement that he has entered into
joint development agreement in the capacity of kartha of the
family for necessity and benefit of the family. The plaintiffs
have no right over the suit schedule properties. It is not a
joint family property and property belongs to him. There are
more than 1000 cows requiring lot of money for maintenance.
It is contended that the agreement is between the owner of
the property and a developer. Moreover, when the agreement
has been terminated, question of deposit of money does not
arise. Only cheque for Rupees Six crores has been encashed.
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As the agreement stands terminated, the applications are not
maintainable and prays for dismissal of the applications.
11. I have heard the learned counsel for the parties and
perused the entire records.
12. Sri Tarakram, learned Senior Counsel appearing for
the petitioner in the first two writ petitions, submitted that
the impugned order is illegal. There is non application of
mind and non consideration of materials on record by the
court below. Many of the documents and many of the orders
are not taken into consideration. When the agreement stood
terminated, the question of deposit of money does not arise.
The plaintiffs are not parties to the Joint Development
Agreement. The question of title is in serious dispute. When
the serious question of title is involved, the direction to
deposit is per se illegal. Anraj does not claim ownership and
therefore it is not open for the plaintiffs to claim ownership of
the properties. The joint family of Giridharilal & sons were
not the owners of the suit schedule property. Anraj Sankhla
S/o Giridharilal or Giridharilal did not own these lands. In
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the various sale deeds it is mentioned that the lands are
purchased to look after cows. Hence plaintiffs cannot have
any right over these lands. During the life time of Anraj
Sankhla he never claimed any right over these lands. The
goshala has nothing to do with the family of Giridharilal
and/or Anraj. The cheques have been encashed by Bangalore
Gorakshana Shala only to the tune of Rs.6 crores. The
impugned direction is impossible to be complied.
13. The learned senior counsel has relied upon the
decisions in Ramji Gir & others v. Elaichi Devi, reported in AIR
1974 Patna 280 (V.61,C 78) to contend that plaintiff suing for
a share in family estate cannot be granted his share before
his rights have been determined in the suit brought by him.
The learned senior counsel also relied upon another decision
in Mulimani Sanna Basavarajappa v. Basavannappa, reported
in AIR 1959 Mysore 152 (Vol.46, C.60)(1) to contend that when
the claim made in the plaint is contested, the court has no
inherent jurisdiction to grant relief until that claim is
26
determined on its merits and that can only be by the final
hearing in the suit.
14. On the other hand, the learned counsel for
respondents No.11 to 18 submitted to dismiss the writ
petition contending that the 19th defendant has received huge
sums of money on the suit schedule properties without any
manner of right and what the plaintiffs sought was only to
deposit the amount to the suit account and not to pay the
amount to them and therefore there is no illegality or
irregularity in the impugned order. The learned counsel
placed reliance on the decision in Syndicate Bank v. Estate
Officer & Manaager, A.P.I.I.C. Ltd., & Ors. reported in AIR
2007 SC 3169 Para-44 which reads thus:
“44. There cannot be any doubt whatsoever that in
absence of a registered deed of sale, the title to the
land does not pass, but then what would not be
conveyed is the title of the estate and not the
allotment and possession itself”.
27
15. After hearing the learned counsel for the parties, the
point that arises for consideration in these writ petitions is,
whether the impugned order calls for interference under
Article 227 of the Constitution? My answer would be in the
negative for the following reasons:
16. The jurisdiction of this Court under Article 227 of
the Constitution is a supervisory jurisdiction, which has to be
exercised sparingly and only in appropriate cases to keep the
subordinate courts within the bounds of their authority.
Such a power cannot be exercised to influence subordinate
judiciary to pass any order or judgment in a particular
manner. Keeping this limitation on scope of interference with
the interlocutory orders of the courts below in mind, the
impugned order has to be examined.
17. I A No.13 was initially filed against defendant No.16
and as stated earlier, now the 19th defendant Kishanlal
Kothari has represented Bangalore Gorakshana Shala as its
Secretary. It is the case of plaintiffs No.11 to 13 and 15 to 18
that the schedule landed properties are exclusively belonging
28
to M/s.Giridharilal & Sons. These properties are ancestral
properties of plaintiffs. The said landed properties are not
belonging to Kishanlal Kothari i.e., defendant No.19. It is also
the further case of the plaintiffs that Giridharilal & Sons were
maintaining a Gorakshana Shala in the part of their land,
which is in existence prior to the one claimed by defendant
No.19. The sale deeds are standing in the name of
Giridharilal and Sons, which mention the existence of
Gorakshana Shala in the family property. The record of
rights, mutation entries are in the name of Giridharilal and
sons which establish the said landed properties are
exclusively belong to Giridharilal & Sons. The RTC entries
also disclose that the suit schedule properties are joint family
ancestral properties. The sale deeds were obtained during the
year 1934 to 1937 boundaries shown in the plaint schedule
tally with the boundaries of the sale deeds. The sale
consideration was paid by Giridharilal & Sons on behalf of the
joint family.
29
18. It is further case of the plaintiffs that 19th defendant
falsely represented and without having any authority has
executed memorandum of understanding in August, 2006 in
favour of 17th defendant relating to joint family lands of
plaintiffs and other sharers and received Rs.11 crores. The
said act is fraudulent and would cause wrongful loss to the
plaintiffs and he has collected non-refundable deposits
stating that he (Kishanlal Kothari) is competent to execute
MOUs. as owner of Bangalore Gorakshana Shala and
collected the amounts without documents of title in favour of
M/s.Bangalore Gorakshana Shala on the suit schedule
properties.
19. The 19th defendant contends that Gorakshana Shala
is claiming rights through document of Kishanlal S/o
Jawarmel to Misrilal S/o Herachand and Deelraj S/o
Charanraj as transferors and Bangalore Gorakshana Shala
Nekkondi as transferee vide transfer deed dated 7.4.1941.
According to the plaintiffs, this deed is created document
fraudulently, no such registered conveyance title deeds
30
existed in favour of 19th defendant. The registered sale deeds
of 1934 to 1939 of Giridharilal & sons prevail over the
transfer deed dated 7.4.1941.
20. It is submitted that the 19th defendant has made
another MOU in August, 2006 with false representation that
Gorakshana Shala is the absolute owner of Sy.Nos.64, 108
and 109 measuring 12 acres and taken Rs.7.5 crores on the
suit lands.
21. Thus the defendant No.19 claims right on the basis
of transfer deed dated 7.4.1941. It could be gathered from
the records that claim of Kishanlal Kothari was rejected by
the Tahsildar in RRT proceedings and the same was
confirmed in revision petition, which has become final, not
being challenged further. On the transfer deed there is no
trace of title as there is no registered sale deed in favour of
defendant No.19. Therefore, the joint development agreement
and MOUs. are without authority of law as Kishanlal Kothari
has not shown his right over suit schedule properties through
proper conveyance deed.
31
22. It is the case of the 19th defendant that there is
rescinding of contract or altering the terms of original
contract. In the absence of proper document in this regard
between the parties who were earlier entered into contract,
such a contention of the 19th defendant as to cancellation of
contract cannot be believed, which view is well supported by
the decision in AIR 2007 SC 3169 referred to supra.
23. It is the contention of the petitioner - 19th defendant
that when the title itself is in dispute, the plaintiffs are not
entitled for any interim relief. The agreement is between the
owner of the property and developer, the plaintiffs have no
right to seek deposit of the amount. The 19th defendant has
failed to prove prima facie at least, his right over the suit
schedule properties. The court below has considered the
documents placed on record such as sale deeds dated
1.5.1935, 2.10.1936, 27.7.1936, 5.9.1934, 5.9.1934,
21.9.1933, 10.7.1936, 30.1.1939, 16.10.1937, 7.2.1934,
18.10.1935 and also the record of rights with reference to suit
schedule Sy.Nos.42/4, 51, 52, 53, 55, 57, 64, 65, 66, 96,
32
98/1-2, 99, 100, 101/1-2-3, 108, 109 and found that RTCs
in respect of Sy.No.57 & Sy.No.64 are standing in the name of
Giridharilal and Sons and Sy.No.108 is standing in the name
of Gorakshna Sabhe Kartha S Giridharilal & Sons and
Sy.No.109 is also standing in the name of S Giridharilal &
Sons Gorakshana Sabhe Kartha. In the MOUs. the 19th
defendant is referred as its Secretary and Chairman of sub
committee as owners. The properties involved are
Sy.Nos.108, 109 of Mahadevapura and Sy.No.64 of
Doddanekkundi approximately measuring 12 acres. The
said properties are offered for development and developer has
agreed to develop by constructing a multi storied commercial
complex. The recitals in the said MOUs. showed receipt of
Rs.11 crores by the 19th defendant representing as secretary
and Chairman of Sub-Committee pertaining to M/s.Bangalore
Gorakshana Shala through cheques out of which certain
amount is refundable and certain amount is non-refundable.
24. From the documents, the court below prima facie
found that the suit schedule properties are the joint family
33
properties of plaintiffs and other sharers and the said
properties are purchased by S Giridharilal and Anraj in the
years 1934, 1936 and 1939. The said sale deeds are acted
upon and entries are mutated in the name of Giridharilal &
Sons in the Record of Rights. The plaintiffs have filed the suit
for partition and separate possession. The schedule
properties are not standing in the name of defendant No.19.
The transfer deed claimed by the 19th defendant is disputed
by the plaintiffs. The contention of the plaintiffs is that
M/s.Giridharilal & Sons had established Goshala in the land
prior to the existence of M/s.Bangalore Gorakshana Shala.
M/s.Bangalore Gorakshana Shala have no right, claim or
interest on any inch of the land in Sy.No.57, 64, 108 and 109.
In the circumstances, it is clear that defendant No.19 is not
entitled to retain Rs.11 crores received by him under the two
MOUs. on the suit schedule properties. According to the
plaintiffs they have undivided shares in the suit schedule
properties whereas 19th defendant contends that the suit
schedule properties are not belonging to the said Giridharilal
34
and Sons or Anraj Shankla and properties are exclusively
belong to Bangalore Gorakshana Shala, which has to be
thrashed out at the full-fledged trial of the suit.
25. The defendant No.19 has not produced any material
to show that he is authorized to receive the said money and to
retain and enjoy the same to others’ exclusion. It seems the
defendant No.1 in collusion with his daughter and sons for
their illegal gain in collusion with defendant No.19 created
two MOUs. for which the plaintiffs are not the signatories.
26. The plaintiffs No.11 to 13 and 15 to 18 are able to
show prima facie that the lands involved in the two MOUs.
are some of the suit schedule properties and the defendant
No.19 has not made it clear at this stage as to how he is
entitled to retain the sum received there under to himself for
the exclusion of others. It is also noticed that the 19th
defendant has issued cheque in favour of M/s.Bagmani
Constructions on 1.9.2013 for Rs.20 lakhs, which further
evidences receipt of Rs.11 crores by the 19th defendant.
35
27. In the circumstances, I am of the considered view
that the court below has considered the entire matter in
proper perspective and directed the 19th defendant to deposit
Rs.11 crores to the suit account, which does not suffer from
any illegality or any material irregularity so as to call for
interference of this court under Article 227 of the
Constitution.
28. The connected writ petition No.47128/2014 (GM-
CPC) is filed by the plaintiffs being aggrieved of that portion of
the impugned order which directed prayer relating to payment
of interest on the aforesaid deposit amount has to be agitated
at the time of hearing on the main suit by the plaintiffs. It is
to be mentioned here that no person can be allowed to enrich
himself wrongfully on the amount of others. For the period
for which the 19th defendant held the amount, he is liable to
pay interest, which can be worked out at the time of final
adjudication of rights of the parties. In that view of the
matter, the court below is justified in reserving liberty to the
plaintiffs to agitate the same at the final hearing of the suit.
36
Therefore, that part of the impugned order also cannot be
faulted to call for interference by this Court and accordingly
this writ petition is to be disposed of reserving liberty to the
parties to agitate the same at the time of final hearing of the
suit.
29. The reliance placed by the learned senior counsel
appearing for the petitioner in the first two writ petitions on
the two decisions in AIR 1974 Patna 280 (V.61,C 78) and AIR
1959 Mysore 152 (Vol.46, C.60)(1), though there is no dispute
as to the ratio laid down therein, the said decisions cannot be
pressed into service to the facts of the case on hand for the
simple reason that no share in favour of any party is granted
and it is only a direction to deposit the amount to the suit
account in order to make sure that the said amount with
interest is available when the rights are settled at the final
disposal of the suit by the court below.
30. The learned counsel for the defendants also
submitted that certain amount is already in Fixed Deposit.
37
Therefore, it makes no difference to keep the amount in the
suit account.
Accordingly, for the aforesaid reasons, W P
Nos.38077/2014 & 38460/2014 (GM-CPC) are rejected and
W P No.47128/2014 (GM-CPC) is disposed of. The 19th
defendant is granted four weeks time to deposit the amount of
Rs.11 crores to the suit account, which shall be kept in Fixed
Deposit initially for one year and thereafter extend the same
from time to time till disposal of the suit.
Sd/- JUDGE
akd